Orissa High Court
Nikunja Kanhar vs State Of Odisha on 9 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No. 5452 of 2023
Nikunja Kanhar .... Petitioner
Mr. S.K. Bhanjadeo, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. A. Pradhan, ASC
CORAM: JUSTICE V. NARASINGH
ORDER
09.08.2023
Order No.
03. 1. Heard learned counsel for the petitioner and learned counsel
for the State.
2. The petitioner is an accused in connection with C.T. Case
No.13-A/2022, pending in the file of learned Additional District &
Sessions Judge-cum-Special Judge, NDPS, Phulbani, arising out of
Gochhapada P.S. Case No.40 of 2022 for alleged commission of
offences under Sections 20(b)(ii)(C)/29 of the NDPS Act.
3. Being aggrieved by the rejection of his application for bail
U/s.439 Cr.P.C. by the learned Special Judge, Phulbani by order dated
20.04.2023 in the aforementioned case, the present BLAPL has been
filed.
4. It is stated that charge sheet in the case at hand has been filed
on 12.09.2022 in which the petitioner has been cited as an absconder.
5. It is submitted that the date of occurrence is 18.03.2022 and
one co-accused Kalia Kanhar was nabbed at the spot and on the basis
of his statement, the petitioner was taken into custody.
6. Learned counsel for the petitioner places on record the
judgment passed in respect of the co-accused Kalia Kanhar who has
acquitted by judgment dated 05.05.2023 by the learned Court in seisin
(learned Judge, Special Court, Phulbani, Kandhamal) in C.T. Case
No.13/2022 (T.R. Case No.33 of 2022).
7. In view of such acquittal, learned counsel for the petitioner
submits that keeping in view the basis of implication of the petitioner
being on account of the statement made by the accused so acquitted,
his further continuance in custody is not warranted.
8. Learned counsel for the State opposes the prayer for bail and
submits that the acquittal qua the accused who face the trial cannot
ennure to the benefit of the present petitioner and as such, the same
has no bearing and in view of bar contained in Section 37(1) of the
NDPS Act, the petitioner ought not to be released on bail keeping in
view the quantity of contraband seized i.e. 4 quintals 34 kg.
9. This Court perused the judgment of acquittal passed by the
learned Court in seisin which based its finding primarily on the
ground of violation of mandatory provisions of the NDPS Act.
10. Keeping the same in view and also the judgment of the Apex
Court in the case of the Tofan Singh vrs. State of Tamil Nadu,
reported in (2020) 80 OCR (SC) 641 and the State of Haryana vrs.
Samarth Kumar reported in 2022 Live Law (SC) 622, this Court
directs the petitioner to be released on bail on such terms to be fixed
by the learned Court in seisin.
11. Before releasing the petitioner on bail, learned Court below
shall verify criminal antecedent of similar nature. If it comes to fore
that the petitioner has any such criminal antecedent, this order shall
stand recalled.
12. Additionally, it is directed that Petitioner shall appear
before the jurisdictional police station once every month on such
date and time to be fixed by the learned Court in seisin till
conclusion of trial. Certification of such appearance shall be
submitted to the Court in seisin.
13. Accordingly, the BLAPL stands disposed of.
14. Urgent certified copy of this order be granted as per rules.
(V. NARASINGH)
Judge
Santoshi
Signature Not Verified
Digitally Signed
Signed by: SANTOSHI LENKA
Reason: Authentication
Location: High Court of Orissa
Date: 10-Aug-2023 14:52:03
